« Superb Law and Religion Symposium | Main | Lack of Freebies, Image of Forlorn Boy Mar 2008 AALS Conference »

Friday, February 08, 2008

Marriage of minors, marriage between minors

Yesterday's post about what the scope of criminal law should be with respect to adult sex with teens and teen sex with other teens (both in the familial and extra-familial contexts) generated some good comments. Today I'm interested in reactions to marriages with minors and between minors in both polygamous and monogamous situations.

What reactions do you have regarding what you think the law should be in a liberal democracy under the following conditions, and why? My tentative reactions appear after the jump.  For today's hypos, here are the basic facts: a 38 year old man, a Rhodes Scholar and HLS grad who is a high-ranking Mass. gov't official, meets and falls in love with a 16 year old male at a resort in Florida. (I've changed the hypo from yesterday, which involved a 15 year old.)  They fall in love and want to marry. Should the marriage be recognized under the following scenarios?

a) boy, who is of average maturity and intelligence for his age, invited and consented to the marriage proposal, and is unrelated to the adult

b) boy, who is of average maturity and intelligence for his age, invited and consented to the actions, and is the first cousin of the adult but never met the adult beforehand

c) boy, who is of average maturity and intelligence for his age, invited and consented to the actions, and is the first cousin of the adult, but lives in the adult's home in Mass.

d) boy, who is of average maturity and intelligence for his age, invited and consented to the actions, and is the brother of the adult living in the same residence

e) boy, who is of average maturity and intelligence for his age, invited and consented to the actions, is the brother of the adult and lives apart from his brother in different states.

f) boy, who is of average maturity and intelligence for his age, invited and consented to the actions, and the unrelated adult is not 38, but is 16 years old, also of average maturity and intelligence,

g)   boy, who is of average maturity and intelligence for his age, invited and consented to the actions, and the other person is 16 years old, also of average maturity and intelligence, and is the first cousin

h) boy, who is of average maturity and intelligence for his age, invited and consented to the actions, and the other person is 16 years old, also of average maturity and intelligence, and is the brother of the boy but lives in a different state.

i)  boy, who is of average maturity and intelligence for his age, invited and consented to the actions, and the other person is 16 years old, also of average maturity and intelligence, and is the brother of the boy but lives in the same home.

j) boy is actually 24, of average maturity and intelligence for his age, invited and consented to the actions, and is the brother of the adult living in a different state.

k) boy is actually 24, of average maturity and intelligence for his age, invited and consented to the actions, and is the brother of the adult living in the same residence

l) change boy "victim" to female in the previous scenarios

m) change adult (or "other person") from male to female in previous scenarios

n) the two parties additionally fall in love with a third person, unrelated to the two parties, and she is 22 years old, and would like to join them in a group marriage.

--

Here  (in the context of marriages) I am somewhat torn. I feel quite at peace with prohibiting all marriages involving those under 18. But I recognize that's an attitude informed by suspicion that consent to marriage is hard to justify across the board for minors under 18 even though I was willing to decriminalize teen sex with other teens or with adults if the teens are above a certain age (probably over 14) if certain preconditions were satisfied (such as the sex-ed license, the registration of the activity with the state, and the absence of co-habitation in the same residence, asymmetrical dependency, or a supervisorial relationship).

If that's the case, why is a teen's consent to marriage harder to credit than a teen's consent to have ongoing consensual sexual relations? I also wonder if anybody would be willing to credit a teen's consent to marry before they would be willing to credit a teen's consent to have sexual relations outside of marriage. (In other words, does marriage confer a teen's right to have sex with someone that wouldn't exist otherwise? If so, why?). Anyway, here is my quick sense of whose marriage licenses should be permitted. I am tempted to say that recognition of marriage and recognition of consent to sex should be tethered together; I do feel uncomfortable with the law authorizing 15 year olds getting married, which suggests I should revisit some of my decisions yesterday about 15 year olds having sex.

a) boy, who is of average maturity and intelligence for his age, invited and consented to the marriage proposal, and is unrelated to the adult

Markel: should be permissible if boy has rec'd a sex-ed license and the unrelated person is not in a position of presumptive authority over the 16 year old boy, such as a teacher or boy scout troop leader.

b) boy, who is of average maturity and intelligence for his age, invited and consented to the actions, and is the first cousin of the adult but never met the adult beforehand

Markel: should be permissible if boy has rec'd a sex-ed license and the unrelated person is not in a position of presumptive authority over the 16 year old boy, such as a teacher or boy scout troop leader.

c) boy, who is of average maturity and intelligence for his age, invited and consented to the actions, and is the first cousin of the adult, but lives in the adult's home in Mass.

Markel: should be viewed skeptically because a presumption of coercion should exist regarding X's  sexual relations with a minor living in the same home as the adult

d) boy, who is of average maturity and intelligence for his age, invited and consented to the actions, and is the brother of the adult living in the same residence

Markel: should be viewed skeptically because a presumption of coercion should exist regarding X's  sexual relations with a minor living in the same home as the adult

e) boy, who is of average maturity and intelligence for his age, invited and consented to the actions, is the brother of the adult and lives apart from his brother in different states.

Markel: should be permissible if boy has rec'd a sex-ed license and the person is not in a position of presumptive authority over the 16 year old boy.

f) boy, who is of average maturity and intelligence for his age, invited and consented to the actions, and the unrelated adult is not 38, but is 16 years old, also of average maturity and intelligence

Markel: should be permissible if both have rec'd a sex-ed license 

g)   boy, who is of average maturity and intelligence for his age, invited and consented to the actions, and the other person is 16 years old, also of average maturity and intelligence, and is the first cousin

Markel: should be permissible if both have rec'd a sex-ed license

h) boy, who is of average maturity and intelligence for his age, invited and consented to the actions, and the other person is 16 years old, also of average maturity and intelligence, and is the brother of the boy but lives in a different state.

Markel: should be permissible if both have rec'd a sex-ed license

i)  boy, who is of average maturity and intelligence for his age, invited and consented to the actions, and the other person is 16 years old, also of average maturity and intelligence, and is the brother of the boy but lives in the same home.

Markel: should not be recognized

j) boy is actually 24, of average maturity and intelligence for his age, invited and consented to the actions, and is the brother of the adult living in a different state.

Markel: should be permissible

k) boy is actually 24, of average maturity and intelligence for his age, invited and consented to the actions, and is the brother of the adult living in the same residence

Markel: should be permissible

l) change boy  to female in the previous scenarios

Markel: same answers

m) change adult (or "other person") from male to female in previous scenarios

Markel: same answers

n) Plural marriage situation

Markel: same principles would generally apply to polygamy situation.

Posted by Administrators on February 8, 2008 at 12:13 PM in Article Spotlight, Criminal Law, Dan Markel | Permalink

TrackBack

TrackBack URL for this entry:
https://www.typepad.com/services/trackback/6a00d8341c6a7953ef00e550253f558833

Listed below are links to weblogs that reference Marriage of minors, marriage between minors:

» Markel Has Even More Questions from Sex Crimes
After yesterday's series of questions, Markel has even more. This time the issue is marriage and not sex. Markel has also changed his hypothetical so that the boy is 16 years old. Here are the questions:a) boy, who is of [Read More]

Tracked on Feb 8, 2008 7:57:18 PM

Comments

what do i need to get married but im still a minor?so what do i have to do my parents are ok with it i whant to get married as soon as possible

Posted by: wendy | May 5, 2008 11:05:17 PM

Mr. Boyden:

You seem disagree with Vanceone's "legislating by fiat," but wasn't that the whole purpose of this discussion -- "what you think the law should be?"

Or are you, perhaps, fighting the hypothetical, and implicitly asserting that issues of marriage should not be subject to the whims of the electorate?

Posted by: Joel Smith | Feb 10, 2008 5:21:16 PM

Marriage has no absolute meaning. The "meaning" of marriage, like the meaning of life, is whatever one thinks it is, and thus is different for different people (pun intended).

Posted by: Monkay | Feb 9, 2008 1:41:11 PM

Vanceone, as long as we're legislating by fiat, I've got some more rules:

No marriages mid-week. They're too hard to get to.

No chicken dance at the reception.

No one I don't like should be allowed to marry. It would defeat the whole point of marriage, which is that the couple should love each other, and anyone who loves someone I don't like shouldn't marry that person. Marriages between TWO people I don't like are especially forbidden.

Finally, guests must be able to keep the flower arrangements from their table. But you can't start raiding other tables until more than 80% of the other guests have left.

Posted by: Bruce Boyden | Feb 8, 2008 4:57:31 PM

You could make a pretty similar for-the-kids argument against polygamy--kids are better off if their dads aren't spending lots of time running around with people besides mom.

Posted by: Chris | Feb 8, 2008 3:19:40 PM

Professor Markel, your post seems to be influenced by an augment that was made more explicitly in Vanceone's blog post yesterday. Specifically, that there must be some point when minors become competent to consent/drink/vote/join the army/whatever.

I think it is a mistake to think that these should all occur at the same age. We limit the decisions on minors can make because they are not as capable of making informed decisions as adults. But it's not like a light goes off in a person's head on her 16th, or 18th, or 21st birthday. We have to draw specific lines, but we recognize that, for the most part, people gradually become more mature, and more capable of making important decisions for themselves, as they grow up.

You say that "an attitude informed by suspicion that consent to marriage is hard to justify across the board for minors under 18 even though I was willing to decriminalize teen sex". I don't see a principled reason why you can't justify it.

First, marriage is more life altering than having sex, because it has all the pitfalls and benefits of sex plus those of marriage.

Secondly, and most importantly, there is no realistic way for the state to stop 16 year-olds from having sex. Even if society thinks they are not ready, they will think they are and the criminal law isn't going to stop them. Such a law will result in a lot of people being punished, or it will be hugely and selectively under-enforced, or both. By contrast, it is easy to stop teens from marrying; best of all, without sending anyone to jail.

Although I disagree with almost the entirety of Vanceone's comment, his or her suggestion of permitting mariage for older minors with parental consent seems to have merit.

Posted by: Nathan | Feb 8, 2008 3:03:53 PM

As is not surprising, based on my comments yesterday, I disagree with you again, Professor Markel.

None of the homosexual marriages should be allowed, regardless of age. Why? Because of the fundamental purpose of marriage is defeated: marriage is not meant only for the husband/wife, but for a family--to provide a nuclear family in which to raise children. A family is the most powerful influence in a childs life, and as such should be of primary importance. Such a family involves a father and a mother. It's why I lament no fault divorce, too. Marriage is not meant to just allow people to have legalized sex.

So no go on the homosexual marriages(including the lesbian ones): they totally twist the entire purpose of having marriages at all and reduce it to just gratification of sexual impulses, or at least it does not function as a family unit with children. This is not something the public policy should encourage, which your proposals would tend to do. Childless couples can adopt. Homosexual marriages still lack a mother/father dynamic. I recognize there are many single-parent households, but those are usually seen as deviations, not the ideal. Homosexual marriages shouldn't be held up as "normal," either.

In your scenarios of different genders, I have a really strong abhorrence to the idea of marrying relatives. A brother and a sister marrying? That's even worse than the incest idea. That's been a taboo for thousands of years for very good reasons. Again, I ask what societal purpose is furthered by allowing close relatives to marry? The first cousin thing is a bit different, I know in England it is allowed, and I believe it used to be allowed here.

Now, with respect to the opposite gender marriages at age 16--I'd say no way on the age 38 ones. For the teenager marriages, I think they should be allowed, but under the guise of having parental consent. Their parents should be in the best position to judge whether or not the child is ready. That makes it a case by case situation.

Polygamy is also verboten. Here, I confess, this is entirely a religious bias. Seeing as I am LDS, we have had extensive history with legality of polygamy. Currently, it is not allowed by us, even in a state where polygamy is legal.

Our history, and the lessons we've learned is, that polygamy is fraught with potential for abuse if just anyone can enter into it. From the point of view of equality of partners, while it CAN be done( and indeed, was done successfully by the vast majority of the LDS pioneers who entered into it), it was a very controlled, maintained thing--and the controls used by the LDS church are not available to the state, nor should they be. The LDS church used income standards, moral probity, character and all sorts of things to determine if a polygamous relationship would have a chance, and vetoed a lot of them. This would not be available to a state-sanctioned set of relationships, and thus would be ripe for massive, massive amounts of abuse. This is strictly against public policy, and should be shunned.

I hope that was understandable!

Posted by: Vanceone | Feb 8, 2008 12:46:12 PM

The comments to this entry are closed.